
    Bogle and Others v. Conway’s Ex’rs.
    [Friday, April 24, 1801.]
    Pleading and Practice — Statute of Limitations — Former Suit. — if in assumpsit, the defendant plead the act of limitations, and the plaintift would avoid the plea by a former suit having- "been brought in time, he must reply the former suit especially: he cannot give it in evidence under a general replication to the plea.
    Bogle and others, surviving partners of Robert Gilchrist & Co. brought indebitatus assumpsit for goods sold and delivered, against Conway’s executors, in the District Court. The defendants plead the act of limitations, and the plaintiffs replied generally. Upon the trial of the cause, the plaintiffs filed a bill of exceptions to the Court’s opinion; which stated, that the plaintiffs, in order to rebut the plea of the act of limitations, offered in evidence, a record of the County Court of King George, in an action on the case for goods sold and delivered, brought by the plaintiffs against the testator of the defendants, in March, 1774, (setting it forth in heec verba;) and a certificate of the clerk of the County Court in these words; “I do hereby certify, that the above record contains all the proceedings which appear to have taken place in our office in the suit, Robert Gilchrist & Co. v. Francis Conway, on a particular ^examination of the minutes; all the papers filed in the cause, being put away in a bundle endorsed British Suits on the docket, which I suppose to contain those suits which were afterwards suspended that the defendants objected to the testimony; and, that the Court would not permit it to be given in evidence to the jury.
    Verdict and judgment for the defendants ;
    and the plaintiffs appealed to this Court.
    Randolph, for the appellants.
    It is clear there was a former suit, the trial of which was delayed: and the plaintiffs ought to have been permitted to prove it.
    E. T. Brooke, contra.
    If evidence, as to this fact, ought to have been received at all, the testimony offered was improper: For, a copy of the record, and not the certificate of the Clerk, ought to have been produced. But, no evidence, as to that fact, ought to have been received. For, the plea was, that the defendant did not assume within five years; to which the plaintiffs replied generally; and, thus the parties were at issue, upon the single point, whether the defendants assumed within five years or not? So, that the testimony had no relation to the issue, but was entirely collateral to it; and, therefore, the Court very properly rejected it. If the plaintiffs wished to have availed themselves of the evidence, they should have replied the matter specially, in order that the defendants might have joined issue with them on the point relative to a former suit, and have come prepared to disprove it. Whereas, the plan pursued, of producing the evidence at the trial of the other issue, was calculated to surprise the defendants. These principles are confirmed by Brown’s ex’rs v. Putney, 1 Wash. 303, and Wilcocks v. Huggins, 2 Stra. 907.
    Randolph, in reply.
    If testimony on the point was admissible at all, then the evidence offered *was sufficient; for, even parol evidence might have been received to shew that there was no person capable of bringing the suit: But, the facts were better authenticated by the document produced, than they would have been by parol evidence, as it shewed a depending suit, and what steps had been taken in it, by the certificate of the officer, who had the care of the papers. There was no necessity for a special replication, as the plaintiffs were at liberty to have offered any evidence which went to she'w that the suit was brought in time.
    
      
       Statute oí Limitations — Exceptions—How Pleaded.— Exceptions to the statute of limitations must be specially replied. In support of this rule, see the principal case cited in Butcher v. Hixton, 4 Leigh 528; Rice v. White, 4 Leigh 483.
      It was held In Lewis v. Bacon, 3 Hen. & M. 89, 104, citing the principal case, that if the defendant In equity plead the statute of limitations, and the complainant come within any of the exceptions in the act, he will not he entitled to the benefit thereof, unless he set it forth by a replication.
    
   LYONS, Judge.

Delivered the resolution of the Court, that there was no error in the opinion of the Court below; and, therefore, that the judgment was to be affirmed.

Judgment affirmed.  