
    *Clopton's Adm'r v. Clarke's Ex'or.
    March, 1836,
    Richmond.
    (Absent Brooke and Brockenbrough, J.)
    Pleading and Practice — Failure to Plead Statute of Limitations at Proper Time — Right to Plead Afterwards. —In assumpsit, defendant pleads the general issue at September term 1818; his death is suggested in October 1823, and the cause is revived at March term 1821 against his administrator, who obtains leave at October term 1825 to plead the statute of limitations, but (by inadvertence as it seemed) the plea is not then filed; at March term 1826 the cause is called for trial, and the administrator asks leave to put in the plea; Heed, it cannot now be received.
    Same-Revival of Personal Action — What Representative May Plead. — It seems, that on revival of a pending personal action, under the statute 1 Rev. Code. ch. 128, § 38, against the personal representative of defendant, such representative can plead de novo such pleas only as his testator or intestate, if living, might have pleaded in the actual stage of the cause.
    Heth executor of Clarke brought assump-sit against Clopton in his lifetime, in the circuit court of Henrico. The declaration was filed at June rules 1818. At the following September term, Clopton appeared and pleaded non assumpsit; and the cause was continued from term to term till March 1821, when the plaintiff’s death was suggested on the record. In December 1821, a scire facias was awarded to revive the action in the name of Randolph executor of Heth, and so executor of Clarke. It did not appear that the scire facias was served on Clopton. In October 1823, the defendant’s death was suggested on the record; and in March 1824, a scire facias was awarded, returnable to the next October term, to revive the action in the name of Randolph executor of Heth executor of Clarke, against Clopton’s administrator; and this scire facias was returned executed. Finally, at March term 1826, (the cause having been continued iri the interval by virtue of the statute,) Clopton’s administrator moved the court for leave to file a ’‘plea of the statute of limitations ; but the court refused to give him leave to plead that plea; and he filed a bill of exceptions to the opinion, from which it appeared — ■
    That, upon the calling of the cause for trial, the defendant asked leave to put in the plea of the statute of limitations; and he proved by parol testimony, that leave had been given him to plead that plea, at the preceding term; and his counsel averred that he thought the plea had been then put in, until a few minutes before the cause was now called for trial. But the plaintiff’s counsel never having heard of the application, or of the leave given, to plead that plea at the former term, opposed the defendant’s motion for leave to file the plea now, justas the jury was about to be sworn to try the general issue before pleaded, on the ground, that the necessary effect of admitting the new plea would be to delay the trial of the cause till the next term. And under these circumstances, the court held that the plea ought not now to be received; to which the defendant excepted.
    Then there was a trial of the general issue. Verdict for the plaintiff for 333 dollars, with interest from June 1817, and judgment accordingly: to which this court, upon the petition of the defendant, allowed him a supersedeas.
    Taylor, for the plaintiff in error.
    The circuit court erred in refusing to permit the defendant to plead the statute of limitations. There was a time, indeed, when that plea was no favourite, and the court was astute in laying hold of any thing to defeat it; but it is now (as it ought always to have been) differently regarded, and treated with as much favour as any other plea. King v. Waller, 1 W. Blacks. 286; Clementson v. Williams, 8 Cranch 72; Wetzel v. Bussard, 11 Wheat. 310; Bell v. Morrison, 1 Peters 351, 360; 2 Wms. Saund. 64b. Clopton’s administrator offered the plea, at the first term at *which there is any evidence of record of his appearance: it was not his own case: he had no motive to plead it, but to defend the estate of his intestate: it cannot be presumed, that the plea was offered for the sake of delay, and it ought to have been received. Chisholm v. Anthony, 1 Hen. & Munf. 27; Jackson v. Webster, 6 Munf. 462; Tomlin’s adm’r v. Howe’s adm’r, Gilm. 1 ; Franklin v. Cox, 4 Rand. 448. If the court shall disregard the parol evidencé stated in the exception, the defendant offered the plea as soon as he could; namely, at the first term at which he appeared. If the court shall pay regard to the parol evidence, then he appeared at the term next before the term of trial, and obtained leave to plead this plea; and it was only through inadvertence, in the hurry of business, that the plea was not. entered on the record. Such inadvertence ought not to deprive him of a good defence, which it was his duty to the estate he represented to make. The statute which gives the scire facias to revive personal actions against the representative of a defendant dying pending the action, gives the representative, upon the return of the scire facias executed on him, a right to plead de novo, “every such plea or pleas as an executor or administrator may lawfully plead, or as the deceased party might or could have pleaded, if he had lived 1 Rev. Code, ch. 128, § 38, p. 497. The statute gives the representative of the deceased defendant a right to plead any plep. which he might have pleaded, if the action had been originally brought against him.
    Johnson, contra.
    The statute gives the representative of the deceased part}' a right to plead de novo, only that which his testator or intestate might have pleaded in the actual stage of the cause, if he had lived. The question is, whether Olopton, if he had lived, having pleaded the general issue in September 1818, and stood on that defence for eight years, could have demanded leave in 1826, at the very moment the jury was about *to be sworn to try the general issue, to plead any plea which would necessarily delay the trial? For tue objection was not to the plea of the statute of limitations, but to the admission, at that stage of the proceedings, of any new plea which would delay the cause. By the defendant’s own shewing, he had appeared at the preceding term, and had obtained leave to plead the statute of limitations. It was, therefore, his own neglect that that plea was not entered ; and such neglect of his own was no ground to entitle him to put in the new plea, at the instant the cause was called for trial, and thereby, of necessity, to delay the cause till another term, especially after the long delay that had already occurred. This is distinctly admitted in Tomlin’s adm’r v. Howe’s adm’r. A plea of the statute of limitations ought not to be admitted after issue joined on another plea, without good reason shewn why the plea was not sooner tendered; Martin v. Anderson, 6 Rand. 19.
    
      
      He tried tbe cause in the circuit court.
    
    
      
      See monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
   CARR, J.

A question was raised at the bar, upon the statute giving the scire facias to revive personal actions, for or against the representatives of plaintiff or defendant dying pending the action,— whether, when the deceased defendant’s representative appears upon scire facias executed, or without a scire facias, he may plead any matter which he might have pleaded, if the action had been originally brought against him, — or whether he can only plead such matter as his testator or intestate, if living, could have pleaded, in the actual state of the cause? But I do not think this question necessarily involved in the opinion given by the circuit court in this case; nor do I understand the circuit court to have refused to permit the defendant to plead the new plea, upon its view of the bearing of that statute on the case. The defendant had had an opportunity of offering any new plea he thought proper, as early as October term 1824, when the scire facias was returned ^executed on him. He obtained leave to file the plea of the statute of limitations at October term 1825; but he neglected to avail himself of that leave. At March term 1826, when the cause was called for trial, he again asked leave to put in the plea. It was objected to by the plaintiff’s counsel, on the ground that the admission of it would inevitably cause delay. And the court decided, under these circumstances, that the plea ought not now to be received ; shewing, that it was not the nature of the plea, but the time and circumstances under which it was offered, that formed, with the court, the ground for the rejection of it. I think it was a good and sufficient ground, and that the judgment should be affirmed.

TUCKER, P.

I agree with Mr. Johnson in his interpretation of the statute regulating the proceedings upon a scire facias to revive. By that statute it is provided, that upon the appearance of the executor, he shall be at liberty to plead every such plea as the deceased party might or could have pleaded, if he had lived. Construing the statute according to its letter or its spirit, it is equally clear to me, that Clop-ton’s administrator could not at March term 1826, have been entitled to plead any plea (except one appropriate to his representative character) which his testator would not have been entitled to plead at that term, had he been then living. The words of the statute clearly imply nothing more. Its object w'as to place the representative, as to the defence of the action, precisely in the place and stead of the testator or intestate. It did not design to rip up the whole proceedings during the decedent’s lifetime, and to let in the representative to plead matter, which his testator or intestate himself had forfeited the right to plead; for this would have not only added to those delays which it was the avowed object of the statute to prevent, but would unjustly have given to the defendant’s *representative a right to embarrass the plaintiff by dilatory and sham pleas, which could not have availed his testator after he had once pleaded to issue. Thus, if the construction contended for on the part of the appellant be correct, the representative upon his appearance would have been entitled to plead in abatement, or to the jurisdiction of the court, although his testator had precluded himself from those objections by pleading to issue. This cannot be the design of the statute. It was not intended to give him liberty to plead what his testator, had he lived, would not have been received or allowed to plead.

Would Clopton himself, if he had lived, have been allowed to plead the statute of limitations at March term 1826, eight years after he had rested his defence upon the plea of non assumpsit alone? Ho precedent, I think, could be found for such indulgence. Though the statute of limitations is a fair plea, and does not merit the frowns of the court, yet, in all fairness, he who intends to rely upon it, should announce that determination with reasonable promptness, that his adversary may not lose the benefit of any testimony he may have to contradict it. It cannot be said that eight years delay was not unreasonable; nor do I think it would have been proper to have allowed the plea, since after such a lapse of time the plaintiff may be presumed to have lost his testimony. The statute is made to protect defendants against the possible loss of their evidence; and the practice should at least afford some protection to plaintiffs against the same hazards. There is no error in the judgment.

CABELL, J. I concur in the opinion of the president.

Judgment affirmed.  