
    *Murdock and Others, Surviving Partners of William Cunninghame & Co., v. Herndon’s Executors.
    October, 1809.
    (. Appeals — Record—Court Will Inspect Whole Record —When a cause is brought up to a superior Court upon a bill of exceptions, the Court will inspect the whole record, and, if there be any error, will reverse the judgment, for such error, though they may be of opinion that the Court below decided rightly on the particular point, on which the exceptions were taken,
    a. Same — Second Appeal. — If a cause be remanded to an inferior Court, and a new trial directed, the superior Court must be presumed to have thought the declaration sufficient; consequently, on the new trial, or on a second appeal, no exception can be taken to the declaration.
    3. Same — Abatement of Suit. — where a suit would have abated by the death of the plaintiff, and the defendants might have been permitted to plead de novo, if they omit to avail themselves of the death of the plaintiff, but, on the contrary, admit that certain persons are his surviving partners, and go to trial without asking permission to plead de novo, they are precluded from making the objection after verdict.
    4. Pleading — Nil Debet — Limitation.—After verdict for the plaintiff, on the plea of nil debet, it is no ground for arresting judgment, that the claim, as shewn by the declaration, was barred by the act of limitations; for it will be intended that, if the act were given in evidence, the plaintiff rebutted it by some other evidence, which avoided its operation.
    This cause was heretofore in this Court, under a different style, and was decided on a different point, ()
    The original suit was an action of debt, brought in the name of William Cunning-hame & Co. in the District Court of Fredericksburg, against Edward Herndon, upon a written acknowledgment of the defendant, that on the 18th of August, 1775, he had “settled his account with William Reid, merchant in Fredericks-burg, and found the balance due him to be 881. 7s.” and a written memorandum, made on the same day, and on the same paper, by William Reid, “that the above acknowledgment of Edward Herndon for 881. 7s. was to be understood due to William Cunninghame & Co.” The declaration stated the fact of the acknowledgment, and the memorandum thereon, which was charged as an assignment. The defendant pleaded “owe nothing;” upon which issue was joined. On the trial the defendant objected to the admission of the above writings as evidence; the Court sustained the objection ; and, under the influence of that opinion, a verdict was found for the defendant. The plaintiffs appealed to this Court; and pending the appeal, the appellee, Edward Herndon, died, and the appeal was revived against his executors, the present appellees.
    This Court having reversed the judgment of the District Court, and sent the cause back with instructions to *admit the evidence, (being- of opinion that it was proper upon the issue,) an entry was made on the record in that Court, (on the 14th of October, 1803,) “that the suit abated as to William Cunninghame & Co. by his death, and.it was admitted that Peter Mur-dock, John Hamilton, and James Robinson, were the surviving partners;” whereupon a Jury was immediately impanelled, and sworn to try the “issue joined,” without any application by the defendants to plead de novo, and a verdict found for the plaintiffs for 881. 7s. and294 dols. SS cts. damages.
    Errors in arrest of judgment were filed by the defendants, on the following grounds :
    1. That the note and assignment, as stated in the declaration, did not entitle the plaintiffs to recover, in the form in which they had declared.
    2. That it appeared by the declaration, that the demand was barred by the act of limitations.
    3. And that it appeared by the record, that William Cunninghame was dead before the finding of the verdict.
    The District Court, upon argument of the errors, gave judgment for the defendants ; from which the plaintiffs appealed to this Court.
    Williams, for the appellants.
    Botts and Hay, for the appellees.
    The cause was argued at March term last; when various points were made by the counsel for the appellees in support of those stated in the errors in arrest of judgment, which were repelled by the counsel for the appellants, chiefly on the ground that the opposite parties were precluded, by the former judgment of this Court, from making the objections at this time. And on Friday, the 13th of October, 1809, the Judges delivered their opinions.
    
      
      AppeIIate Practice — Inspection of Whole Record.— For this proposition the principal case is cited in foot-note to Baird v. Mattox, 1 Call 257; Pollard v. Baylor. 4 Hen. & M. 235. The principal, case is also cited in Lanier v. Cocke, 6Munf. 580; Butcher v. Hixton, 4 Leigh 528; Greenlee v. Bailey, 9 Leigh 528: Carlonv. Ruffner. 12 W. Va. 307; Rilej v. Jarvis, 43 W. Va. 55, 26 S. E. Rep. 369.
    
    
      
      (a) See 2 Call, 530.
    
   JUDGE TUCKER.

This is the same case which is reported in 2 Call, S30, under the title of Cunninghame v. Herndon. *While the suit was depending in this Court, Herndon died; and the cause was revived here against his executors. The judgment was finally reversed, and the Jurors’ verdict set aside, “and a new trial was ordered to be had in the cause,” with directions to admit the evidence which had been rejected on the former trial.

The cause being again brought on in the District Court, the following entry appears : “This suit abates as to the plaintiff, William Cunninghame,” (he being the only plaintiff named in the declaration, which is brought in the name of W. Cunninghame and Company, not naming any other,) “by his death, and it is admitted that Peter Mur-dock, John Hamilton, and James Robinson, are the surviving partners of the said William Cunninghame & Co. ‘whereupon came the parties by their attorneys, and thereupon came a Jury,’ &c. who found a verdict for the plaintiffs.”

The defendants moved in arrest of judgment, and assigned for cause,

1. That the note and assignment thereof, as stated in the declaration, do not entitle the plaintiffs to their action in manner and form as set forth in said declaration.

If this were sufficient cause for arresting the judgment, it ought to have been sooner noticed, when the cause was before this Court on the former appeal: for I understand the practice of this Court to be, that if a cause is brought up here upon a bill of exceptions, the Court will consider the whole record and proceedings, and if there be any error therein, in any other part of the record, will reverse the judgment for such errors ; although they should be of opinion that the particular point upon which the exception was taken was rightly adjudged below : because the appellate Court must inspect the whole record, () This Court having reversed the former judgment, which was rendered in favour of the defendants, and directed a new trial to be had in the cause, must be presumed to have thought the declaration sufficient; otherwise, they would have affirmed the first judgment, though not for the reasons given in the *bill of exceptions, as has been often done in this Court. I therefore do not conceive that any exception can be taken to the declaration upon this second appeal. The practice would be highly inconvenient and vexatious, and productive of infinite delay, and of appeals without end.

2. The defendants allege, as a cause of arresting the judgment, that it appears by the-declaration, that the demand is barred by the act of limitations. The plea is nil debet„ Upon this plea it has been decided, that the-act of limitations may be given in evidence-.. It is possible it was given in evidence on the trial, and that the plaintiffs produced other evidence, which avoided its operation ; and this is the presumption of law after a verdict ; so far at least as that the defendant shall not avail himself of the act of limitations in arrest of judgment. The act must be specially pleaded, or given in evidence,, in cases where that is permitted; otherwise-, no notice can be taken of it, after a verdict.

3. They allege, that it appears by the record, that the said William Cunninghame-was dead before the finding of the verdict of the Jury. W. Cunninghame being the-only plaintiff named in the declaration, the-suit ought to have been abated, upon tha.t fact being shewn to the Court, unless the-defendants have precluded themselves from taking advantage of it, by admitting (as the record states) that Peter Murdock, &c. are-the surviving partners of the said William Cunninghame & Co. Why did they proceed to the after trial 1hat admission, instead of moving the Court to abate the suit in toto ?• If they had made such a motion, I think the plaintiffs ought to have been permitted to' amend their declaration by inserting the names of the surviving partners, intended to be comprehended under the word Company, according to the admission of the defendants. It has the air of surprise, and therefore I think ought not to receive the sanction of this Court, more especially as it is a general rule, that advantage ought to be taken of any matter by which a suit may be liable to abate, by way of plea puis dar-rein continuance, at the very next *term after which the abatement happens, and, consequently, before the party proceeds to a trial; and as the defendants by their admission shew that they had notice of Cun-ninghame’s death, and that there were surviving partners, whose names they also knew, I think they ought, as at that time, and not after the trial, to have m'oved the Court to abate the suit, or filed a plea for that purpose.

But there remains another point to be considered : The suit, having abated in this Court by Herndon’s death, though revived against his executors here, and sent back for a new trial, without any directions as to the executors being first admitted to plead, has been tried upon the issue joined between Herndon and Cunninghame, in their lifetimes respectively, instead of being tried upon a new plea of the executors of Herndon, and issue thereon joined between the present parties.

At common law the original suit must have abated in toto by Herndon’s death after issue joined ; and so must it have done at any time before the act of 1§06, (2 Rev. Code, 126,) which was subsequent to the reversal, and even to the last trial in the District Court. Even if the revival here might operate to revive it in the District Court, for the purpose of a new trial, yet I doubt whether there has not been such a mis-trial as is not aided by the statute of jeofails, there being no issue joined between the parties then before the Court.

Besides, upon principle,() it would seem, that the executors ought to have been permitted to plead to the action in the same manner as if the suit had been brought originally against themselves; for they ought to have had an ^opportunity of pleading the want of assets, or any other matter that they might have pleaded, if the suit had been brought originally against them.

Perhaps the omission of the executors to move the Court to permit them to plead, either de novo, or such additional plea as their counsel might have advised, has cured this error, if it be one. If the majority of the Court shall be of that opinion, I shall cheerfully acquiesce in their decision.

But, upon the whole, my opinion is, that the judgment be reversed, and the cause sent back, with leave to the plaintiffs to amend their declaration by inserting the names of the present parties, and to the defendants to plead to the action, as if it had been brought originally against them.

JUDGE ROANE.

Upon a perusal of this case, as formerly reported,() it appears to have been the opinion of the Court, that the declaration contained a sufficient cause of action ; else the judgment of the Court would not have assumed the shape it did, which was to reverse the judgment, on the ground that the District Court erred in withholding the writings, offered by the plaintiff, from the Jury. This question, therefore, was then settled, and is not now open for the decision of this Court: and this is a full answer to the first error assigned in arrest of judgment on the second verdict.

As to the second error assigned, viz. that it appears by the declaration that the said demand is barred by the act of limitations, there is nothing in it. That act is not pleaded ; and, if it be true that it could be given in evidence on the plea of nil debet, (which seems to have been the ancient *opinion,) it may be, and therefore we ought so to take it after verdict, that the effect of this bar was rebutted and done away by proof of recent acknowledgments of the debt.

As to the third error assigned, that William Cunninghame was dead before the finding of the verdict of the Jury, there is a clear admission by the defendants, on the record, that the suit should proceed in the names of the surviving partners who are also specified therein.

There is, then, nothing to justify the opinion of the District Court, arresting the judgment on the verdict rendered in favour of the plaintiffs. With respect to the objection stated by the Judge who preceded me, in relation to the appellees, the executors ; the appeal was revived against them while it was depending in this Court. They did not move, either in this Court or the Court below, for leave to plead de novo ; and therefore the Court was not to volunteer such a privilege in their favour. It is possible, indeed, that it might have been eligible for them to have changed the plea, and pleaded fully administered. But how did the Court know this to be the case ? and why not suffer parties to elect the particular grounds of their own proceedings ? The plea, on which issue was joined in this case, denied the existence of the debt altogether. By what authority, then,' ought the Court to have compelled, or even permitted, a relinquishment of that ground, (without- its being asked for by the executors,) and the substitution of another plea, (that of plene administravit,) which, on the contrary, admits the debt, though not the quantum of it. Why should the Court, without any motion for that purpose, and therefore, I infer, without any necessity required by the state of the testator’s assets, adopt a course which would arrest the trial, and exhaust a good deal of time in maturing for trial another issue, to which the instruction of this Court would have no application. That instruction certainly contemplated a new trial of the existing issue, and not of another issue to be made up between the parties. This point, then, is concluded by the former *opinion of this Court, that this issue, and not another issue, should be tried between the parties.

I see no necessity for the Court to have volunteered such a privilege in the case before us, however it might have been if I the executors had made a motion for that purpose ; and, therefore, in every light in which I can view the case, I am of opinion, that the judgment of the District Court should be reversed, and one entered for the appéllants.

JUDGE EEEMING.

The only doubt on the mind of either of the members of the Court seems to be, whether, upon the suit being revived against the executors of Hern-don, the original defendant, and the death of the plaintiff, William Cunninghame, who was first named in the firm of Cunninghame & Co., the former pleadings ought not to have been set aside, and the defendants allowed to plead de novo ? To this it may be observed, that the parties went to trial on the former issue by mutual consent, or at least without any objection on the part of the defendants, they admitting that Peter Murdock, John Hamilton, and James Robinson, are the surviving partners of the said William Cunninghame & Co., and no motion to the Court, or suggestion was made, that they wished to plead over, or to amend their plea ; nor is it stated, or taken notice of, in the errors filed in arrest of judgment, which have already been recited. I am not for obstructing the course of justice (as was sometimes formerly done in England) by an over nice criticism on pleading, where a cause has been fairly tried on its true merits; and especially after a verdict. I am, therefore, of opinion, that the District Court erred in sustaining the errors in arrest of judgment, and that the judgment of the said Court be reversed, and the plaintiffs have judgment on the verdict aforesaid.

Judgment of the District Court reversed. 
      
      (a) Baird v. Mattox, 1 Call, 257.
     
      
      (1) Vide 3 Saund. 72, n. Williams’s note. “Where the defendant dies after interlocutory and before final j udg-ment, the plaintiff must sue out two writs of scire facias to entitle himself to take out execution: one before final judgment, to make the executors or administrators parties to the record; the other, after final judgment, to give them an opportunity of pleading- the want of assets, or any other matter, that an executor may plead in his defence to a scire facias, brought upon a final judgment obtained against his testator: for it would be unreasonable that the executors or administrators should be in a worse, situation where their testator or intestate died before final judgment, than they would have been in, if he had died after.” Cites Say. Rep. 366, Tomkins v.. G-ratton. — Note in Original Edition.
     
      
      (a) See 3 Call, 530.
     
      
       Bull. N. P. 149.
     