
    *Peery’s Adm’r v. Peery.
    June Term, 1875,
    Wytheville.
    Absent, Bouldin J.
      
    
    I. Practice—Exceptions—Time of Taking.-—Though a plaintiff moves the court, before the iury retires to consider of their verdict, to exclude certain evidence -which had been given on the trial, which the court refuses to do, if notice of a purpose to except to the ruling of the court is not given until the jury come into court with their verdict, the exception is too late.
    II. Facts.—H recovers a judgment against W and P. Afterwards W and H die, and E qualifies as the executor of W and the administrator of H. As administrator ofH, E sues out a scire facias to revive the judgment against P the surviving obligor, and he appears and files a general plea of payment, without stating the nature of the payment. He proves that H in his lifetime assigned the judgment to D, who was a debtor of T, who was a debtor of W; and that under an agreement between T and D that T would take in payment of his debt, any debt on W which E would take in payment of T’s debt toW, D obtained this judgment from H, and assigned it to E, who credited the amount on T’s debt to W. There was a verdict for the defendant, and on motion for a new trial, Held:
    a. Plea of Payment—Fallacy In.— The evidence should have been excluded from the jury, the defendant’s plea not describing the payment so as to give plaintiff notice of its nature, as required by the statute, Code of 1860, ch. 172, § 4.
    2. Assignment of Judgment—Assignee’s Rights and Liabilities.—K having taken the assignment to himself, and credited the amount upon the debt due from T to W, 'he made himself "'liable to his testator’s estate for that amount; but having taken the assignment to himself, he was the owner of the judgment, and might as administrator of H maintain the scire facias to revive the judgment at law.
    3. Same—Effect—At Law—In Equity.—The arrangement does not constitute a payment of the judgment at law, though It may constitute grounds of equities between W and P.
    In June 1869 H. F. Peery recovered a judgment by confession in the County court of Tazewell, against John M. Witten and W. W. Peery, for twelve hundred and forty dollars, with interest from the 3d of January 1861 until paid and costs, $5.38. Prior to June 1873 both the plaintiff H. F. Peery and John M. Witten had died, and James P. Kelly had qualified as administrator of H. F. Peery and as executor, of Witten.
    In June 1873 James P. Kelly, as administrator of H. F. Peery, sued out of the clerk’s office of the County court of Tazewell county a scire facias to revive the said judgment against W. W. Peery the surviving obligor therein, and the same having been executed upon him, he appeared and filed the plea of payment; upon which issue was taken. The cause was then removed to the Circuit court.
    Upon the trial the defendant to sustain his defence, introduced a bond for $4,000 executed by David Toomy to John M. Witten, bearing date the 15th of June 1869, and payable four years after date, and an endorsement thereon dated the 1st of June 1871, of a credit on the bond for $2,084.23. And he then introduced a witness George W. Desk-ins, who proved that in the lifetime of Witten said Toomy purchased of Witten certain real estate to the amount of $5,500, for which Toomy executed his note to Witten. That subsequently thereto the witness and his son-in-law John H. Owens, purchased real estate from Toomy, for *which they executed their notes to him to the amount of $6,450. That to settle the matter between himself and Toomy, it was agreed that Toomy would receive from witness on the indebtedness of Deskins and Owens, -any paper that James P. Kelly the plaintiff, who was then the executor of Witten, would receive from Toomy on his indebtedness to Witten. That after three or four months negotiation, witness and Owens purchased and had assigned to him certain judgments against Witten, and among them the judgment in suit in this case, which was assigned by H. F. Peery. This assignment was for value to Deskins, describing the judgment, which is stated then to amount to $2,032.78. That thereupon the witness, Toomy and Kelly the plaintiff met in conference, when witness assigned the judgment to Kelly. The assignment is as follows: For value received I assign the above judgment to James P. Kelly, amounting to $2,032.78. Given under my hand, August 1st 1871. George W. Deskins. And that to the extent of his assignment to Kelly the witness received a credit upon his and Owens’ indebtedness to Toomy, and Toomy was credited to a like extent upon his indebtedness to the estate of John M. Witten.
    The witness further stated that some time during the negotiations, he did not remember when, something was said about taking a refunding bond, and that Kelly said he would not take such a bond, but would take an assignment.
    After Deskins had deposed to the foregoing facts the plaintiff moved the cortrt to exclude the testimony from the jury as improper, because there being only a general plea of payment by the defendant, the said general plea gives no notice to the plaintiff of the special and particular circumstances relied upon as proof *of payment, and that such testimony could only be introduced under a special plea of payment, as required by the 4th section of ch. 172, page 716, of the Code; and there being filed no description of the said matter of payment and no account giving notice of the nature of such payment. Il^ut the court overruled the motion to exclude the testimony; to which opinion of the court the plaintiff excepted.
    But it appears from the bill that no exception was made to the ruling of the court before the return of the jury with their verdict.
    The jury having found a verdict in favor of the defendant, the plaintiff moved the court for a new trial, on the ground that the verdict was contrary to the law and the evidence ; but the court overruled the motion and the plaintiff excepted. In addition to the facts hereinbefore given there was some other which went only to corroborate the statement of Deskins.
    The court having entered a judgment on the verdict, the plaintiff applied to a judge of this court for a writ of error; which was awarded.
    J. W. & J. P. Sheffey and Gilmore, for the appellant.
    Terry & Pierce and Burns, for the appellee.
    
      
       Judge Bottudin was prevented by sickness from being present in court at the decision of a.ny of the cases decided during the remainder of the term at Wytheville.
    
    
      
       Practice—Exceptions—Time of Taking.—In Williams v. Commonwealth, 93 Va. 773, the principal case is cited and followed. See also, Whalen v. Com., 90 Va. 549; Trumbo’s Adm’r v. Street-Car Co., 89 Va. 780. The principal case was also cited by the court in the following cases; Lamberts v. Cooper, 29 Gratt. 64, and note; Page v. Clopton, 30 Gratt. 420, and note; Powell v. Tarry, 77 Va.260; Danville Bank v. Waddill, 31 Gratt. 477, and note. See in West Virginia, Gilmer v. Sydenstricker. 42 W. Va. 52, 24 S. E. 566; Core v. Marple, 24 W. Va. 355; Dimmey v. R. R. Co., 27 W. Va. 51; Danks v. Rodeheaver, 26 W. Va. 294; Wickes v. B. & O. R. R. Co., 14 W. Va. 166.
    
    
      
      Plea of Payment—Fallacy in.—See the imperative language of the Code in § 3298; also, Barton’s Law Pr. (2nd Ed.) 497; 1 Va. L. R. 780; Botetourt Co. v. Burger, 86 Va. 530.
    
   Anderson J.

delivered the opinion of the court.

The court is of opinion, that the Circuit court erred in overruling plaintiff’s motion to exclude from the jury the testimony of George Deskins, the plea not describing the payment, as the witnesses’ testimony tended to prove, so as to give the plaintiff notice of its nature, as required by section 4, chap. 172, of Code of 1860. The motion to exclude was made and overruled *before the cause was given to the jury; but it does not appear from the record, that the point was saved by the plaintiff, or any notification given that it would be saved, until after the verdict was rendered. The rule of practice, which is sanctioned by this court in Wash. & New Orl. Teleg. Co. v. Hobson & Son, 15 Gratt. 122, 138, and by a more recent decision, in the case of Martz’s ex’or v. Martz’s heirs, 25 Gratt. 361, is that notice must be given at the time of the ruling of the court, or at least before verdict, that the point will be saved, though the bill of exceptions may be drawn up and signed, any time during the term. This case may therefore be considered on its merits, and in connection with the testimony sought to be excluded, as presented by the first bill of exceptions.

And the court is of opinion that the facts proved, did not justify the verdict of the jury. James P. Kelly was executor of John M. Witten, and administrator of H. F. Peery. The latter in his lifetime obtained a judgment for debt, against the former, John M. Witten, and WilliamW. Peery, the, defendant here. John M. Witten and H. F. Peery having both died subsequent to the judgment, this proceeding was instituted by James P. Kelly administrator of the latter, to revive the judgment in his name, against Wm. W. Peery the survivor, who pleaded payment.

After the death of John M. Witten, a bond , for $4,000, which had been executed to him ! in his lifetime by one Toomy for land, came j into the hands of his executor, the" said Kelly, which Toomy was desirous to pay. He held the bonds of George Deskins, and his son-in-law Owens, for $5,500, and agreed that he would receive from Deskins, and credit on his and Owens’ debt, any paper that J. P. Kelly, Witten’s executor, would receive and credit upon his indebtedness *to Witten. Deskins obtained an assignment from H. F. Peery for value, of his said j üdgmen t against Witten and Wm. W. Peery, amounting then to $2,032.78 cents, which he assigned to Toomy, who, according to this testimony, gave credit on his and Owens’ indebtedness to him for the amount thereof. It seems that Kelly as executor of Witten refused to make payment of said judgment; but as an accommodation to the parties, he was willing to credit Toomy’s bond to Witten, with the amount of the judgment, whereby he became personally liable to the estate of Witten for that amount, and to take an assignment of the judgment for his indemnity. It does not appear that he was benefited to the amount of one cent by the transaction ; his only object seeming to be to facilitate an adjustment between the parties. And to make himself safe, he required that the judgment should be assigned to himself. So that whilst he by crediting Toomy’s indebtedness with the amount of the judgment, assumed a liability therefor to the estate of Witten, he held the unsatisfied judgment against J. M. Witten and W. W. Peery both, by the assignment of H. F. Peery, George Deskins, and Toomy, to make him safe.

The court ‘is of opinion that said transaction was unquestionably legitimate, and from aught that appears, is not liable to objection on the ground of any unfairness. The said James P. Kelly thereby became invested with the beneficial interest in the joint judgment against both John M. Wit-ten and Wm. W. Peery. It was therefore competent for him to maintain the writ of scire facias against Wm. W. Peery, survivor, to revive the judgment against him in his name as administrator of H. F. Peery, for whom the original judgment was rendered. And the court is of *opinion that it was not competent for the defendant to rely upon the assignment of said judgment to James P. Kelly, in his defence to this proceeding, as a payment, and that the verdict of the jury is plainly and palpably contrary to the law, and the evidence. The court is therefore of opinion to reverse the judgment without prejudice to any equities between Witten and W. W. Peery, which may hereafter be asserted in a proper proceeding; and to remand the cause, with instructions to set aside the verdict, and to grant the plaintiff a new rial;which shall be proceeded with in conformity to the principles herein declared.

The judgment was as follows:

This day came ag-ain the parties by their counsel, and the court having maturely considered the transcript of the record of the said judgment and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the transaction on the part of the plaintiff in error set out in his bill of exceptions No. 1, was unquestionably legitimate, and, from aught that appears, is not liable to objection on the ground of unfairness; that the said James P. Kelly thereby became invested with the beneficial interest in the joint judgment against both John M. Witten and William W. Peery; that it was, therefore, competent for him to maintain the writ of scire facias against William W. Peery, survivor, to revive the judgment against him in his name of administrator of H. P. Peery, for whom the original judgment was rendered, and hence it was not competent for the defendant to rely upon the assignment of said judgment to James P. Kelly, in his defence to this proceeding, as a payment; and accordingly that the verdict of the jury is plainly ^'contrary to the law and the evidence, and the said Circuit court erred in refusing to set the same aside on the motion of said plaintiff.

It is, therefore, considered, that for the error aforesaid, the said judgment of the said Circuit court be reversed and annulled, and that the defendant in error pay to the plaintiff in error his costs by him about his said writ in this behalf expended; and the cause is remanded to the said circuit court with instructions to set aside the said verdict and grant a new trial, to be conducted in conformity with the principles herein declared. But this judgment is to be without prejudice to any equities between Witten and William W. Peery, which may hereafter be asserted in a proper proceeding.

Judgment reversed.  