#### Spurlin *v.*Rutherford.

From Burke.

IVhere a Defendant sued on a contract pleads the statute of limita-, tions, which is true, and the jury disregarding the plea find for the Plaintiff, the Court will set aside the verdict and grant a new trial if justice has not been done on the merits; had it been done, *is seems,*the Court would-let the verdict stand.

This was an action on the *case*in which Plaintiff declared that by an agreement dated September 1, 1806, between himself and Defendant, Defendant was to let him have a Still and 300 bushels of corn, in consideration that Plaintiff would distil for 'him 600 gallons of whiskey, and averred performance of his part of the contract, and a refusal by Defendant to perform his part. Defendant pleaded the general issue and the statute of limita - tions-

*361It appeared in evidence that the still, at the making of the contract or shortly thereafter, was in the possession of Plaintiff, that it was taken privately out of his possession in the fail of 1808, and very soon after it was so taken, Defendant had it and claimed it as his property.

The Defendant on the 13th of July, 1809, sued out a writ against the present Plaintiff for a breach of his part of the agreement before mentioned in not making the 600 gallons of whiskey, and at September term, 1814, obtained a judgment, which Plaintiff satisfied before bringing this suit.

The writ in this cause was sued out 30th of August? 1815.

Two questions were presented on the appeal to this Court : viz :

1. Should the action be^ *trover ?*

2- Was it barred by the statute of limitations

- Sbawem. Judge.

The substance of this case is, that the Defendant agreed with the Plaintiff to let him have a still, and 300 bushels of corn *;*for which the Plaintiff’ by the ensuing April, was to make for the Defendant 600 gallons of whiskey, *when*the still was to become the property of the Plaintiff. The contract is not under seal, and is dated September, 1806, and the present action is brought *upon the contract*in 1815, and one of the questions submitted to this court is, whether is the action barred by the statute of limitations ? The breach assigned in the declaration is, that the Defendant failed to deliver the still. By the contract, though no precise time is stated, it would seem from tlue whole of it, that the still was to be delivered time enough to make the whiskey by the April following. By *that*time, the Defendant was bound to make delivery, and the act of-course must commence upon his failure: for though it might be, that the Plaintiff had it in his power to “ quicken” the Defendant by a demand before that time, yet *362without demand, an action accrued to the Plaintiff by this failure on the part of the Defendant. What then appears to take the present action out of the act? The cross su¡j- was commenced in 1809, in time, and depended upon *its*merits, and the recovery whether rightfully or wrongfully, or at what time, has no influence upon this case : for that action or recovery in no respect constitutes *the foundation*of this action. If, however, as seems to have been the fact, the still was delivered in proper time, and afterwards taken away by the Defendant in 1808, the action *then*commenced. In whatever *light*therefore the case is considered, it seems clear that the present action is barred. The case then presents this aspect the jury have disregarded the plea of the Defendant and found for the Plaintiff, and the question rises. — ’Will the court set aside the verdict on that .ground ?

Many cabes are to be found establishing the doctrine that as anew trial is in the discretion of the court, the court will never award one where it sees justice has beep done, and most of these cases are in relation to the act of limitations: without finding fault with the reason as well as policy of the rule, it is sufficient in this case to say, that nothing appears in this case to warrant a belief that justice /(/¿sheen done: for to lay it down as a rule, that Rie court is to permit a beneficial statute, made for the repose of the country and the safety of the Citizens, to be repealed as it were by a jury who happened to differ frock the legislature, is a doctrine, which *Justice*revolts at, and is repugnant to every idea which I entertain of discretion. As we are all against the Plaintiff upon this point, it is not necessary to consider the other, the rule must be made absolute and a new trial awarded.

Hart, Judge.

The case states, that Spurlin 'was put in possession of the still at or shortly after the making of the contract,* in addition to this, it was Rutherford's duty to furnish the amount of corn specified in the con*363tract, and we must take it for granted that he did so, otherwise he could not have effected a recovery against Spurlin, for a breach of contract which the case states he did. If the still and corn were furnished, it was the duty of Spurlin to have had the whiskey ready by the first day of April ensuing, which we must take it for granted he had not ready in that time, otherwise a recovery for breach of contract could not have been had against him. But what cause of action can Spurlin have against Rutherford ? The only one stated is, that two years after the making of the contract, the still was missing, and shortly after w'as seen in the possession of the Defendant. There was only one way under the contract that the Plaintiff could acquire a right to the still, and that was by making the whiskey agreeably to the contract, which from the case stated, I assume as a fact, he did not do. Of course, he liad no right to the still, and although a trespass might have bean committed in taking the still from him by violence, which does not appear to have been the case, he cannot in any form of action recover either the still or its value from the Defendant, who is the real owner of it. For these reasons, I think there should be a new trial. If the facts in the first action were not as above assumed, let them be explained, and set forth as they were proved. As to the other question, namely, is the action barred by the statute of limitations ? I clearly think it is, for the reasons given by Judge Sea-wcll.