
    Coonrod v. Benson.
    The neglect of the court to render a judgment non obstante veredicto, on the ground of an insufficient plea, cannot he urged as error, unless a motion was made for such a judgment* and exception taken to the ruling of the court.
    
      Error to Louisa District Court.
    
   Opinion Toy

Kinney, J.

Coonrod sued B enson in as--sumpsit, and declared upon a note given on the 24th day of February, 1842, calling for $141,00.

The defendant pleaded the general issue, gave notice of the failure of consideration, and pleaded that the right of action did not accrue to the plaintiff within six years before the commencement of the suit. The plaintiff replied -in short, by consent, to the plea of the statute of limitations, and the cause was submitted to the court upon the issue made by the plea of the statute, and the plaintiff# replication. Tbe court sustained tbe plea, and entered judgment for costs against tbe plaintiff, to wbicb be exr-cepted, and assigns tbe decision for error.

Tbe issue made by tbe pleadings, and tried by tbe court, was simply this; did tbe right of action accrue within six years prior to tbe commencement of tbe suit? The defendant says in bis plea, that it did not; tbe plaintiff in bis replication, that it did; and here tbe parties were at issue. Tbe court upon this issue, found for tbe defendant, that tbe right of action did not accrue within six years; and this was tbe fact, as tbe note was given more than six years prior to tbe commencement of tbe suit.

Tbe pleader probably supposed when he filed bis replication, that it would have tbe effect of a demurrer, and would test tbe question of law tendered by tbe plea; but such is not tbe effect of a replication.

Although the plea according to tbe repeated decisions of this court, did not if true, constitute any defense to tbe action, yet the court could not have decided differently under tbe state of the pleadings. The issue was merely one of fact, and not of law. Tbe court by consent, acted in tbe capacity of jury in determining the fact, and found correctly. B ut it is now contended by the plaintiff in error, tbatastbe judge was, substituted for tbe jury, tbe plaintiff having a good cause of action, tbe defendant having put in a bad plea, and tbe decision being in favor of that plea, the court should have rendered a judgment for tbe plaintiff non obstante ver edicto. If the case bad been submitted to tbe jury as made by tbe pleadings, and tbe jury had found for the defendant, upon motion, tbe court could have rendered a judgment in favor of tbe plaintiff “non obstante veredicto,” and a refusal to enter such judgment would have been good cause of reversal.

But it is urged, that-as tbe judge acted in the place of tbe jury, tbe same doctrine should obtain. This is true, but if tbe plaintiff desired a judgment “non obstante vere-dicto ,” be should have made a motion to that effect, and if it bad been overruled and excepted to, be could then ..have bad bis remedy by writ of error.

Grimes c& /Starr, for plaintiff in error.

D. Mover, for defendant.

But the bill of exceptions taken in this case, was to the decision of the court in sustaining the plea. "We cannot change its character, nor apply it to anything except to the decision which it seeks to correct, and which formed the basis for the exceptions.

The plaintiff therefore in this case, should have demurred in order to avoid the plea of the statute of limitations. As he did not demur, and as the plea was no defense to the action when the court found the facts in favor of the defendant, he ought to have moved for a judgment “ non obstante veredicto?" As the plaintiff therefore, has not put his case in a position to claim the aid of this court, and as there was no error in the decision, the judgment must be affirmed.

Judgment affirmed.  