
    Callis v. Waddy.
    Thursday, December 5th, 1811.
    i. Statute of Limitations — Suspensions—Legal Proceedings. — it is ao answer to the bar set up by the plea of the act of limitations, that the plaintiff sued out a writ for the same cause of action within the time prescribed by the act, which writ was executed and returned, and went off the docket for want of formality. See 2 Salk. 420, Budd v. Berkenhead.
    a. Same — Deceit.—In an action on the case for a deceit, if the defendant plead that the cause of action did not accrue within five years next before suing out the writ, a replication that the fraud came to the plaintiff’s knowledge within that time is not good; and issue joined upon it should be set aside, by the court, as immaterial. See 2 H. & M. p. 120, note (1) as to the difference between an informal and an immaterial issue. See also Kerr v. Dixon, 3 Gall, 379; Kirtley v. Deck, 8 ii. & M. 388, and Baird & Co. v. Mattox, 1 Call, 257 — 379.
    To an action on the case for a deceit, the defendant Callis pleaded, “not guilty,” and, for further plea, “that the cause of action, if any, did not accrue within live years next before suing out the capias ad respondendum in this cause.” The plaintiff joined issue to the first plea ; and, to the second replied that the plaintiff ought not to be precluded from his said action “by any thing by the defendant above in pleading alleged; because the plaintiff sued out his writ in the said court, against the said defendant for the same cause of action, within the time prescribed by the act of limitations, which was executed and returned by the sheriff of said county, and which went off the docket for want of formality ; also because his cause of action, as alleged in his declaration aforesaid, is founded on a fraud, and the plaintiff avers that the same came to his knowledge within the time prescribed by law for the bringing of this kind of actions, (to wit,) within five years previous to his suing out' his writ in this cause; and this he is ready to verify,” &c.
    The defendant filed a rejoinder, “that the plaintiff his action ought not to have, &c. for any thing by him in his replication aforesaid alleged, because the defendant says there is no such record in the said court, of a suit by the same plaintiff against the defendant for the same cause of action; and this he prays may be inquired of by the court, &c. also because the fraud in this cause, if any *there was, did not first come to the knowledge of the plaintiff within five years prior to the suing out of the writ in this cause,” &c.
    Issues being so joined, a jury was em-panelled ; and at the trial, the defendant tendered a demurrer to evidence; but the court being of opinion that the case was clear in the plaintiff’s favour, refused to compel him to join in demurrer; whereupon, a bill of exceptions was signed and sealed. A verdict was found for the plaintiff, for 2661. 6s. damages; and judgment entered accordingly; which being affirmed by the district court, the defendant obtained a writ of supersedeas from a judge of the court of appeals.
    
      
       Statute of Limitations. — See monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
    
      
       Same — Suspension—Legal Proceedings. — See principal case cited in Catlett v. Russell, 6 Leigh 372.
    
    
      
       Same — Fraud.—In Thompson v. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. Rep. 796, it was held that when a cause of action arises out of fraud, the statute of limitations runs from its perpetration, but that this rule did not apply to fraudulent conveyances. In delivering the opinion of the court, Brannon, J., said; “Callis v. Waddy, 2 Munf. 511; Rice v. White, 4 Leigh 474; Cook v. Darby, 4 Munf. 444; Pant v. Fant, 17 Gratt. 14, say that the statute runs from the act of fraud. ”
      To the same point, see the principal case cited in Rowe v. Bentley. 29 Gratt. 760; Vanbibber v. Beirne, 6 W. Va. 179; foot-note to Rice v. White, 4 Leigh 474; monographic note on “Fraud” appended to Montgomery v. Rose, 1 Pat. & H. 5.
      In Amy v. City of Watertown, 22 Fed. Rep. 420, it is said: “Courts cannot ingraft on statutes of limitations exceptions not clearly expressed; and when the language of the statute is perfectly clear, it is the duty of the court to enforce the law as it finds it.”
    
   After argument, by Wirt, for the plaintiff in error, and Peyton Randolph, contra, the following was delivered as the opinion of this court.

“This court, not deeming it necessary to decide upon the point made by the bill of exceptions in this case, is of opinion that the judgment of the said county court is erroneous, in this, that the said court proceeded to render judgment for the defendant in error, upon immaterial issues joined upon the plea of the act of limitations; the same issues being immaterial, in this, that the matter contained in the replications to the said plea, if admitted, or proved to be true, afforded no answer to the bar set up by the plea aforesaid. Both judgments are therefore reversed with costs. And it is ordered that the jurors’ verdict, and all the proceedings subsequent to the plea of the act of limitations, be set aside, and that the cause be sent to the superior court of law, directed to be held in Louisa county, that the defendant in error may reply thereto anew, in order to a final trial upon the pleas aforesaid.  