#### *Herrington v. Harkins’s Adm’rs.*

February, 1843,

Richmond.

(Absent Gabble, P., and Bbooke, J.)

Statute of Limitations—How Taken Advantage of.†—

Where an action of debt is brought on a judgment after ten years from the date thereof, and the defendant wishes to avail himself of the statute of limitations, it is necessary that he should do so by plea. A demurrer to the declaration is not the proper mode to take advantage of the statute.

Same—Construction of Statute—Action of Debt.‡—Th e statute 1 R. C. 1819, p. 489, ch. 128, § 5, declaring that where execution hath issued and no return is made thereon, the party in whose favour the same was issued may obtain other executions for ten years from the date of the judgment and not after, does not bar such party from maintaining an action of debt on the judgment after ten years. Continuance—Good Cause for—First Term.—Where an issue is made up in a cause at the first term after

the suit is brought, and the defendant, when the cause is called, moves for a continuance, he must, according to the act 1R. C. 1819, p. 508, ch. 128, § 78, shew good cause for such continuance; otherwise the court, although it be the first term, will try the cause at that term.

Same—Same.—What is not good cause for a continuance.

Accord and Satisfaction—Plea lnsufficlent.§—In debt on a j udgment the defendant pleads, that by an agreement in writing between the parties, the judgment was discharged and satisfied by a new contract, for the payment of a sum in cash, which was then paid, and for the payment of the balance by deferred instalments, whereby the said judgment was remitted and released, and accord and satisfaction thereof made. The plaintiff demurred to this plea, and the demurrer was sustained.

Appellate Court—Rejected Plea—Bill of Exceptions. |— *361Tile decision In White v. Toncray, 9 Leigh 347, that where pleas are rejected an appellate court will take it to have been rightly done unless the defendant has excepted, approved and acted on.

On the 6th of April 183S, James W. Clemens administrator and Elizabeth Harkins administratrix of William Harkins deceased, commenced an action of debt in the circuit court of Norfolk borough against John Herrington. The declaration demanded 12S0 dollars with interest thereon from the 20th day of August ■ 1817, and 8 dollars 75 cents costs of suit. The first count set forth *that William Harkins in his lifetime, to wit, on the 20th of August 1817, at the August term of the court of the county of Ohio in the state of Virginia, recovered against the defendant the sum of 1250 dollars with interest, and 8 dollars 75 cents, as demanded; that afterwards in the lifetime of the said William Harkins, to wit, on the 21st of August .1817, a writ of capias ad satisfaciendum was issued upon the said judgment, which writ was never executed or returned; and that the said judgment still remains in full force and effect, not reversed, satisfied or otherwise vacated. The second count was similar, with the additional allegation that the said William Harkins, in his lifetime, and the plaintiffs since his death, have not obtained any other execution or satisfaction of or upon the said judgment.

The defendant demurred generally to the declaration, and the plaintiffs joining in the demurrer, the same was argued and overruled. The defendant then pleaded payment, upon which an issue was joined.

On the 15th of June 1835, subpoenas were issued for the defendant’s witnesses, returnable to the 18th of that month; one for Ann Jeffrey and John Vangover, directed to the sergeant of Norfolk borough, the other for William Carter, directed to the sergeant of Petersburg, both of which subpoenas were returned executed. When the cause was called, the defendant moved for a continuance upon his own affidavit that these three persons were all important witnesses for him, and that he could not safely go to trial without them, and upon the statement of his counsel that William Carter, one of the said witnesses, was absent. The motion for a continuance was opposed by the plaintiffs, on the ground that they had incurred great trouble &c. in procuring from the county of Ohio two witnesses, who were then present, and upon the further ground of the insufficiency of the said affidavit. At the suggestion and request of the plaintiffs’ counsel, the court directed that the defendant, *wlio resided in town, should be sent for; and upon his coming in shortly afterwards, the court, being then informed that the witness Carter had arrived in town, permitted the defendant, assisted by one of the officers of the court, to go and endeavour to obtain the immediate attendance of Carter, and also the attendance of the other witnesses named in the affidavit. The court was kept open until night, waiting for the defendant and his witnesses; but some of the witnesses having failed to come, because (in the language of the bill of exceptions) “the defendant would not or could not find the said witnesses,” the court adjourned until the next day, with the understanding that the case would be called and tried on that day. On the next day the case being accordingly called, the defendant appeared in court, and by his counsel offered, in addition to the plea of payment upon which issue was previously joined, five special pleas in writing, and again urged the court (not upon oath, but through his counsel) to continue the case, for the following reasons: 1. because the suit had been but very recently brought, and his counsel therefore did not expect it would be tried; 2. because the defendant desires and expects to prove (but without saying by whom) that he the defendant was in the town of Petersburg at the time of the rendition of the judgment in the declaration mentioned, when in fact, as the defendant alleges, the individual against whom the said judgment was rendered was in court, and actually present at the rendition thereof; and 3. because his counsel, in consequence of their engagements, had not had sufficient time to prepare his defence. But the witness Carter (on account of whose alleged absence the motion had been urged) and the witness Vangover having both appeared in court, and Ann Jeffrey, who lives in Norfolk, having, as well as the defendant himself, been present in court the previous afternoon when notice was given that the case would be tried, and the court being satisfied *'that if the defendant had used due diligence he could have produced her, the motion was overruled. To this decision the defendant excepted. In the bill of exceptions it was stated, that the court believed, from the evasive and equivocating conduct and deportment of the defendant, that in making the said application he was induced by no honest purpose, but by the desire to delay the trial, and probably, as the consequence of it, to produce the final loss of the plaintiffs’ demand, by the death of their witnesses or otherwise.

In the transcript of the record, the five pleas in writing were copied. They were as follows: 1. That the defendant is not the same John Herrington mentioned in the record of the county court of Ohio. 2. That the judgment has been paid off and fully discharged by the special bail of the said John Heirington. 3. That the said William Harkins in his lifetime, to wit, on the 8th of May 1818, for and in consideration of the sum of 666 dollars and two thirds of a dollar, did acquit, release and discharge the said special bail, who was bail for the said John Herrington in the proceedings of Ohio court mentioned, and thereby the said judgment was, by operation of law, fully and entirely satisfied and of no farther force. 4. That the plaintiffs are barred by *362the statute of limitations entitled “an act for limitation of actions, for' preventing frivolous and vexatious suits, concerning jeofails and certain proceedings in civil cases,” from having and maintaining their action against him, because he says that 17 years and 6 months had elapsed from the rendition of the said judgment to the institution of this suit. 5. That the judgment of the county court of Ohio was, by an agreement between the said William Harkins and the said John Herrington in writing, in the possession of the said William Harkins, discharged and satisfied by a new contract, for the payment of 400 dollars in cash, which was then and there paid, and the balance of the said amount was to *be paid by deferred instalments; whereby the said judgment was remitted and released, and accord and satisfaction thereof made.

In that part of the transcript of the record wherein the pleas were introduced, it was stated that the defendant, with the leave of the court, filed five pleas in writing, in hasc verba. After copying the pleas, it was stated that to the first of the said pleas the plaintiffs replied generally, and put themselves upon the country, and the defendant likewise; that the plaintiffs objecting to the filing of the second and third, the court rejected the same; that to the fourth the plaintiffs filed a special replication ; and that to the fifth they demurred.

The replication to the fourth plea was in general terms, that the plaintiffs were not barred by the statute of limitations mentioned in the plea from having and maintaining their said action. It concluded to the country, and issue was joined on it.

In the demurrer to the fifth plea the defendant joined, and the demurrer, being argued, was sustained by the court.

Thereupon, to wit, on the 19th of June 1835, a jury was sworn to try the issues joined on the plea of payment and on the first and fourth pleas. The jury found a verdict for the plaintiffs, and judgment was rendered on the same.

To this judgment, on the petition of the defendant, a supersedeas was awarded.

Braxton for plaintiff in error.

The court erred in overruling the motion for a continuance. It was not only a new issue in a case for the first time on the docket, but the suit had been brought only 73 days before it was called for trial. Nevertheless it was tried when the state of the pleadings was necessarily embarrassed, when the counsel of the defendant, in consequence of other professional engagements, was not prepared *for the trial, and when one of the defendant’s witnesses was absent. The defendant had sued out a sub-’ poena and had it regularly served on Ann Jeffrey in due time. He had done all that was in his power for securing the attendance of the witness; and if she did live in Norfolk borough, it by no means follows that the party could have. procured her attendance at the trial.

The demurrer to the declaration was improperly overruled; for, besides other objections, the claim on the face of the declaration appears to be barred by the statute of limitations. Fleming’s ex’or v. Dunlop &c., 4 Leigh 338. The second plea was also improperly rejected, and the demurrer to the fifth improperly sustained.

G. N. Johnson for defendants in error.

The various and inconsistent defences put forward by the defendant tend strongly to shew of themselves that the only object of the party was delay.

The statute of limitations cannot be taken advantage of by demurrer to the declaration. It can only be availed of by plea; and where the plea is not special, but the general issue, the record must shew that the statute was relied upon as a defence under it. Here the defendant pleaded the statute specially; the issue on that plea was found for the plaintiffs, and no objection was taken by the defendant to that finding. Besides, the declaration does not shew when the suit was instituted, and so it does not appear what length of time had elapsed between the judgment and the bringing of the action; the writ not being made a part of the record by oyer.

But if it be necessary to consider the effect of the statute, the opinion in Randolph’s adm’x v. Randolph, 3 Rand. 493, is in point. Judge Green there lays down, that there is no limitation by statute to an action of debt or scire facias upon a judgment, except only in the *case of a judgment on which no execution has been taken out, and in cases against executors or administrators upon a judgment against the decedent.

The court had the right, in the exercise of a sound discretion, to reject the second as well as the third plea. Reed v. Hanna’s ex’or, 3 Rand. 56. The matter was already put in issue by the plea of payment before filed. Besides, the rule that matter amounting to the general issue shall not be received in the form of a special plea, if objected to, is applicable; for the plea of payment is regarded as a general issue in this state. Henderson &c. v. Southall &c., 4 Call 371. Certainly a special plea of payment by a particular person (as the bail) is idle and unnecessary. In The King v. Johnson, 6 East 597, the objection was, that the plea was an argumentative plea of not guilty; and here the plea is an argumentative plea of payment.

The demurrer to the 5th plea was properly sustained. 1 Bac. Abr. title Accord, letter A.; 1 Com. Dig. title Accord. A. 1, pi. 8, A. 2, pi. 4, 5, B. 1, pi. 2, 5, B. 2, pi. 2, B. 4, pi. 1, 3; Fitch v. Sutton, 5 East 230; Harrison v. Close &c., 2 Johns. Rep. 448. In this case the agreement stated was no satisfaction of the judgment. It was in truth an agreement without consideration and void, so far as regarded the excess of the amount recovered by the judgment, over the amount paid in cash.

The attorney general on the same sidel The grounds of continuance set out in the bill of exceptions were merely stated by the *363counsel, and not sworn to by the defendant. The grounds themselves were moreover wholly insufficient, even if they had been verified bjr affidavit. They were altogether too vague and uncertain.

The objection to the declaration, that it shews the judgment barred by the statute of limitations, can at most apply but to one count; for the first does not contain *any statement that no new execution had been sued out. But the question as to the effect of the statute cannot arise at all upon demurrer to the declaration. It is not necessary, therefore, to go into an argument to shew that an action of debt upon the judgment is not barred.

The second and fifth pleas were properly overruled. Eor the second does not aver that there was any special bail, nor who he was, nor when or where he paid. And the fifth pleads a mere parol agreement unexecuted, in bar of the action on the judgment.

Lyons on the same side.

As the witnesses whose materiality was sworn to were all brought into court before the trial, the affidavit of the defendant may be thrown out of the case. It is obvious from the fact that the first special plea is wholly inconsistent with the second, and with the general plea of payment, that the motion for a continuance was a mere scheme to procure delay.

The demurrer to the declaration cannot raise the question whether the judgment is barred by the statute of limitations. Blanshard on Lim. 141. As there were issues made up on a plea of payment, a plea of the statute of limitations, and a plea denying the identity of the defendant, the proper mode of presenting any of the questions involved in those issues to the review of this court was, by moving the court at the trial to instruct the jury, or, after the trial, , to grant a new trial, and excepting to the refusal of the court to give the instruction or award the new trial.

The fifth plea was clearly bad. Peploe v. Galliers, 4 J. B. Moore 163; 16 Eng. Com. Law Rep. 371; Kaye v. Waghorne, 1 Taunt. 428; Drake v. Mitchell, 3 East 251; Scholey &c. v. Mearns, 7 East 148. Accord and satisfaction cannot be pleaded to an action on a record. 1 Saund. on Plead. & Ev. 27.

*Braxton in reply.

The want of an affidavit to the statements of the defendant’s counsel was no ground for refusing the continuance. Such an affidavit is never required in practice. If the motion was disposed of on the first day, the refusal of the continuance was clearly erroneous, as there was then before the court the defendant’s own affidavit of the materiality of the witnesses who had been summoned and were not in attendance: if the motion was kept open until the second day, the reasons of the court for then overruling it were wholly insufficient; for even if the defendant’s witnesses were then in Norfolk, (which does not appear to be established by any thing in the record) that fact would not shew that the defendant could, by any exertion of his, have brought them to the court. [Stanard, J. In such case, is it not the usual practice to bring in the witness by attachment, instead of granting a continuance on account of his absence?] I believe that such practice is not usual, where the action is newly brought, and the case is for the first time called for trial. Even if no one of the circumstances in this case were of itself sufficient to entitle the defendant to a continuance, yet the whole of them taken together constitute ground of the strongest description.

The authorities do not sustain the general proposition, that the defence of the statute of limitations is not available without pleading the statute. In assumpsit, it is true, the defendant must plead it specially. Gould v. Johnson, 2 Ld. Raym. 838; Lee v. Rogers, 1 Levinz 110; Hodsden v. Harridge, 2 Wms. Saund. 63, note 6. But in debt it is otherwise : the defence of the statute may be availed of under the general issue of nil debet. Ballant. on Lim. 215; Draper v. Glassop, 1 Ld. Raym. 153. [Stanard, J. The defendant is required to avail himself of the statute by plea rather than demurrer, that the plaintiff may have an opportunity of bringing himself, if he can, within the exceptions.]

*In Randolph’s adm’x v. Randolph, 3 Rand. 493, the execution had been returned, and judge Green’s remark, relied upon by the other side, was not applicable to the case then before the court. In Eleming’s ex’or v. Dunlop &c., 4 Leigh 338, the proceeding was by scire facias, and an execution sued out on the judgment had not been returned. The remark of Tucker, P., that where execution has issued, though no return be made thereon, the action of debt is not barred, like the remark of judge Green just adverted to, had no application to the case before him. Upon the just construction of the statute, both the scire facias and the action of debt are barred after the lapse of ten years from the date of the judgment, where no execution has been returned.

*

For monographic note on Limitation of Actions, see end of case.

†

Staíute of Limitations—How Taken Advantage of.— See the principal case cited in a *note*in 6 Va. Law Reg. 558, appended to Hubble v. Poff, 98 Va. 646, 37 S. E. Rep. 277. The principal case is also cited in 3 Va. Law Reg. 64. See *foot-note*to Tazewell v. Whittle, 13 Gratt. 329, and monographic *note*on “Demurrers” appended to Com. v. Jackson, 2 Va. Cas. 501.

‡

Same—Construction of Statute—Action of Debt.— The principal case is cited in Smith v. Charlton, 7 Gratt. 450.

. There is no limitation by statute, to an action of debt, or *scire facias*on a judgment, except only in the case of a judgment on which no execution has been taken out. Randolph v. Randolph, 3 Rand. 490. See Fleming v. Dunlop, 4 Leigh 338.

§

 Accord and Satisfaction—Joint Trespassers—Release of One—Effect.—The principal case is cited in Bloss v. Plymale, 3 W. Va. 409.

Novation—Specialty—Discharge of Instruments.—In Moore v. Johnson, 34 W. Va. 679, 12 S. E. Rep. 921, the court said: “The old common law was that a specialty could not be discharged by a parol undertaking (5 Rob. Pr. 740; Wilson v. Spencer, 11 Leigh 273; note a, 1 Tuck. Bl. Comm. 389; 1 Chit. Pl. 524); and, as pertinent to this matter of novation, three cases in Virginia hold that, to make one instrument an extinguishment of another, the new must be of higher dignity than the old, and an express agreement that the note shall extinguish the specialty would be a midumpactum, and if the note is not paid the bond will still live, notwithstanding the agreement that it should be discharged (McGuire v. Gadsby, 3 Call 234; *Herrington v. Harkins, 1 Rob.*591; Parker v. Cousins, 2 Gratt. 373; Bank v. Good, 21 W. Va. 465).” The principal case-is cited in Bank v. Good, 21 W. Va. 465; Bantz v. Basnett, 12 W. Va. 822, 823, 847.

|

 Appellate Court—Rejected Plea—Bill of Exceptions.— See *foot-notes*to Dickinson v. Dickinson, 25 Gratt. 322; Bowyer v. Hewitt, 2 Gratt. 193.

The principal case is cited in Lawrence v. Com., 86 Va. 579. 10 S. E. Rep. 840: Fry v. Leslie, 87 Va. 275, 12 S. E. Rep. 671; Williams v. Knights, 7 W. Va. 338. See also, King v. Burdett, 12 W. Va. 688.

Same—Same—Same—Order Book — Principal Case Distinguished.—If a rejected plea is by order of the court made a part of the record, and the order book shows, that its rejection was excepted to, the supreme court of appeals will review the action of the court in rejecting such plea, though no formal bill of exceptions was taken to the rejection of such plea.. Sweeney v. Baker, 13 W. Va. 160, citing and distinguishing the principal case, White v. Toncray, 9 Leigh 347, and Morrisett’s Case, 6 Gratt. 673, in the following language on page 212: “These cases all differ from the case before us in this, that in all of them the record did not show, that the rejection of the pleas were excepted to by the defendants. In each of them not only was no bill of exceptions filed, but no entry was made on the order book, that the defendants objected, or excepted to the action of the court in rejecting their pleas. But in the case before us the order book expressly states, when these pleas were rejected, the defendants’ exception to the ruling of the court in rejecting them.”

ALLEN, J.

The only question of interest in this case is whether the statute of limitations was a bar to the recovery. The defendant, improperly as it appears to me, attempted to rety on the statute of limitations by a general demurrer. This was overruled. But the defence was presented by an informal plea, to which there was an equally informal replication, concluding to the country, when in fact the pleadings presented a mere question of law. There was a verdict for the plaintiffs, and judgment. This judgment I consider as a decision of the court upon the law; and if correct, it ought not to be disturbed because the issue tried by the jury may have been informal.

In Randolph’s adm’x v. Randolph, 3 Rand. 490, judge Gree.n remarked, that there is no limitation by statute to an action of debt or scire facias upon a judgment, except only in the case of a judgment on which no *364execution has been taken out, and in case of executors &c. The correctness of this observation, as to a scire facias where an execution had been taken out and not returned, came under the consideration of this court in Fleming’s ex’or v. Dun-lop &c., 4 Leigh 338. There an *execution had been sued out within the year, and another. at a subsequent period, but neither returned; and to a scire facias sued out more than ten years after the judgment, the statute was held to be a bar. But judge Tucker concurred with judge Green in the opinion that debt would not be barred.

At common law there was no limitation to the action of debt; nothing but the presumption of payment or satisfaction, arising from a delay to proceed upon the judgment for 20 years. This being the law, the statute provided that judgments, where execution hath not issued, may be revived by scire facias or an action of debt brought thereon within ten years next after the date of such judgment, and not after. No other reference is made to the action of debt. At common law, if no execution was issued within the year, a presumption of satisfaction or release was raised, and the plaintiff was driven to his action of the judgment. To this the statute of Westminster the 2d superadded a scire facias, to give the plaintiff the benefit of the original judgment. And the first provision in the 5th section of our statute limits the remedy to ten years.

Where an execution had issued but was not returned, the execution could not be kept alive lor want of continuances on the roll, 'and the party was driven to his scire facias or action. 4 Leigh 343. The second clause of the 5th section was designed to relieve the plaintiff from this inconvenience, and does so by authorizing him to obtain other executions within ten years without a scire facias. But unless he procures a return on the execution within the ten years, the act is a bar to obtaining any other execution on the judgment. But nothing is said as to the action of debt. Where the legislature intended to limit the recovery by action, as in the case first provided for, where no execution ever issued, they have done so by express words. Their attention was directed to the subject; and as they have *dropped the action of debt in the second clause, by which they designed to limit the time of proceeding on the same judgment, it would be a forced construction to hold that it was embraced by any equitable interpretation of the statute.

The 6th section, which contains a saving in favour of persons labouring under disabilities, conforms to the 5th, and shews the extent to which the legislature intended to proceed, and that the omission of the action of debt in the second provision of the 5th section was not owing to inadvertence. The first provision of the 6th section relates to the first provision of the 5th. As by that, where no execution had issued, the remedy by scire facias or action of debt was limited to ten years, by the proviso in the 6th a further time is allowed in similar cases, after the disability is removed, for reviving by scire facias or action. Here the action of debt is again specified, The second provision of the 6th section, corresponding with the second provision of the 5th, by which, 'where an execution had issued and not been returned, the party was allowed to obtain other executions, allows a further time to obtain executions on the identical judgment after the disability is removed, but is silent as to the action of debt.

It seems to me, therefore, that as it appears an execution was sued out within the year and not returned, though a scire facias to obtain another execution on the same judgment would have been barred, the bar does not apply to the action of debt.

As to the other questions presented by the record, it seems to me the court did right in overruling the motion for a continuance, and in sustaining the demurrer to the fifth plea. As to the second and third pleas, there is no exception to the decision of the court rejecting them. In White v. Toncray, 9 Leigh 347, it was determined, that" if pleas be tendered by the defendant and rejected by the court, and he take no exception *to the rejection of them, he shall be presumed in the appellate court to have acquiesced. In this case, it is true, the record sets out that the pleas were filed: but this, in view of the subsequent motion to reject, and the action of the court, I consider as a mere note of the clerk, and as shewing nothing more than that the pleas were tendered.

I think the judgment should be affirmed.

The other judges concurring, the judgment was affirmed.