
    SPRING TERM, 1820.
    Tomlin’s Adm’r v. How’s Adm’r.
    April, 1820.
    Pleading and Practice — Plea of Statute of Limitations. • — The plea of the statute of limitations is an issuable plea, and sometimes an honest plea. Another plea may be added to the general issue under circumstances. Presumption of payment arising from staleness of the demand will excuse delay in pleading the statute of limitations —especially in favour of an executor or administrator.
    John How brought assumpsit in the year 1809 in the county court of Richmond, against John W. Tomlin, administrator of Walker Tomlin. The declaration contained a general indebitatus assumpsit for 901. 2. 2% the price of How’s interest in the brig Juno which he sold to Walker Tomlin 24th October 1782, which Walker Tomlin assumed to pay on 1st January 1783 subject to a deduction of 10 per cent. ; and also a count on an insimul computassent for the same sum, subject to a like deduction, payable on the same date.
    ':;'A submission to arbitration was made and at another term set aside. In March 1816 both the plaintiff and defendant being dead, the cause was revived by scire facias, in the name of the appellee administrator of How, against the appellant administrator de bonis non of Walker Tomlin.
    In August 1816 the defendant pleaded the general issue and there was a trial, at which the plaintiff moved the court to instruct the jury, that the defendant having pleaded the general issue could not rely on the presumption of payment arising from lapse of time. The court was divided on the motion, the instruction was consequently not obtained, and the plaintiff excepted. The Jury found a verdict for the plaintiff for 901. 2. 7% with interest from 24th October 1782. The court granted a new trial.
    The plaintiff excepted to the opinion of the court granting a new trial, and in his bill of exceptions spread the whole evidence on the record, consisting of 1. A transcript of the account between How and Walker Tomlin concerning the Juno, with an agreement subjoined dated October 24, 1782, by which Tomlin agreed to pay 901. 2. 2% ékc. 2. A receipt dated 1801 executed by I. W. Tomlin for Walker Tomlin to How, for 261. 16. 4%, paid by How in part of money lent him by Walker Tomlin.
    The plaintiff offered to release 10 per cent, of the verdict. But the court granted a new trial.
    At the August term 1817 the defendant asked leave of the court to add the plea of the statute of limitations to the former plea. The court refused. And on the new trial, the Jury found for the plaintiff $737 37, and costs.
    The Superior court of Richmond granted the defendant a supersedeas, and at the April term 1818 affirmed the Judgment. The appeal was from that Judgment.
    Beigh for the appellant.
    * Acknowledging that the plea of the statute of limitations regularly concludes with a verification, and not the country, and that it is improper to tender an issue on that plea, contended that it was nevertheless an issuable plea within the meaning of the act of assembly, requiring the defendant on setting aside an office judgment, to plead to issue immediately, ()
    It had been formerly held that this is not an issuable plea.() But a contrary opinion prevailed, and it was decided, that the statute of limitations is an issuable plea, or what is the same thing a plea to the merits, and withal not an unconscientious plea.()
    In the opinion of the late President Pen-dleton, any plea which is designed as a just defence and not intended for delay, ought in sound discretion to be allowed as an issuable plea, () If therefore this plea had been offered at first on setting aside the office judgment, it should doubtless have been, allowed, and such is the constant practice.
    Ought the court then, in the exercise of a sound discretion to have allowed the plea at the time and under the circumstances in which it was offered?
    In the case of Backhouse v. Jones’ execu-tor() this court held, that the plea of the statute of limitations ought *not to be allowed at any term subsequent to that at which the office judgment ought to have been set aside, unless some sufficient cause appeared to excuse the neglect of pleading it in due time. Did any such sufficient cause appear in this case? for this is the only question.
    The defendant had gone to trial on the general issue, thinking that the lapse of time would furnish a legal presumption of payment, and in point of law according to the recent decision in Wills v. Washington’s administrator he was right. But on this point the county court divided and gave no opinion. So the defendant was never apprized of the necessity of pleading the statute ’till the Jury found against the presumption on the first trial. Here then is his excuse for failing to plead it at first, and for offering it afterwards.
    He pressed with earnestness, that this was not an unjust plea to avoid a just demand, but a just and honest defence to a claim not only stale but iniquitous. Not only the great length of time furnished presumption of payment but there was actual proof of payment, on the first trial.
    The defendant too was an administrator and it was his duty to put in this plea, and the statute in one case recognises the difference between persons suing in their own right and in a representative character. For it is the duty of the court to inforce the statute of limitations to protect the estate of decedents whether the executor plead it or not. ()
    The defendant in this case was as well entitled to amend his plea, as if the plea offered had been plene administravit, *and it has been adjudged error to refuse that plea, if tendered at any time before trial, ()
    But amendments to the declaration are allowable in favor of justice even after a trial and a juror withdraw, () and surely the rule should be reciprocal, and the defendant should have the same opportunity to amend his pleadings.
    Stanard, contra.
    Admitted the statute of limitations to be an issuable plea and is allowable when offered at the term after office judgment is entered. But the question here is, shall it be allowed after the lapse of years of continuances, and indeed after an actual trial and verdict.
    It is contended that the plea should have been allowed, because it is admissible within the sound discretion of the court, and this is a proper case for admitting it.
    The first argument offered to shew this a proper case for allowing the plea is, that it is offered by an administrator. But im Backhouse v. Jones the plea was also offered, by an executor, yet the court held the plea inadmissible because np good cause was. shewn for allowing it. In that case the court admitted there might be cases where the plea should be received. But those cases it is presumed must depend on circumstances which originally prevented the de-fence, and not on the nature of the claim itself. For this court cannot now judicially know what is the nature of the plaintiff’s demand. And it would be to prejudge his. case, to allow a defence to be made to it, on the supposition that it is unjust.
    As to the staleness of the demand furnishing a presumption of payment; allowing the full force of the argument, the defendant should at least have offered this, plea when the new trial was granted, and not on the instant of the second jury’s-being sworn. Neither party ^should be permitted to change the pleadings so as to alter the evidence at the moment of trial.
    Plene administravit, is unlike other pleas, for that is protected by the statute enacting, that no administrator or executor shall be chargeable beyond assets for any misplead-ing, &c. Besides, that plea is wholly affirmative and so requires of the plaintiff no new evidence.
    He insisted strenuously, that the court below could not inquire into the nature of the plaintiff’s demand as a preliminary step to deciding on the admissibility of this plea. If the court allow such evidence, either party might adduce it, and thus in every case decide the merits of the cause on the facts by the judgment of the court, when in truth they can be ascertained only by the verdict of a Jury. And if this course was allowable, it does not appear in this case that there were facts in the case to condemn the plaintiffs claim : For whatever may be on the record, it does not appear but that the plaintiff proved his claim to be both just and honest. Besides, there is a general verdict for the plaintiff, and it is going too far to presume against the truth and justice of a verdict.
    Heigh replied.
    That he had contended the plea should have been received as an act of justice resulting from many considerations combined, and it has been said that not one of these considerations taken singly is sufficient. That, he thought was not the proper manner of treating such a question ; It is a question addressed to the discretion of a court of justice; and though such discretion must ever be regulated by law, it certainly is not by any positive rules of law but rather by the general spirit of law. In such cases, the considerations deducible from convenience, from substantial justice, and from the particular circumstances of each particular case should be allowed their full and combined effect.
    *The objection that the plea might have produced a continuance of the cause, is completely answered by the decision in Chisholm v. Anthony, and the argument is repelled by the considerations of convenience mentioned by Judge Pendle-ton. ()
    
      
      Statute of Limitations -Delay in Tendering. — See principal case distinguished in Martin v. Anderson, 6 Hand. 19. See farther, monographic note on '‘Limitation of Actions” appended to Herrington v. Har-kins, 1 Rob. 591.
      The principal case is also cited in Pugh v. Jones, 6 Leigh 809.
      Bonds — Presumption of Payment. — In Sadler v. Kennedy, 11 W. Va. 193, it was said: “When an action is brought on a bond if twenty years elapse between the time of its becoming due and of the institution of the action, the defendant may (without pleading the statute of limitations) rely upon presumption of payment, and upon issue joined on plea of payment, payment may be inferred by the jury, from circumstances coupled with the lapse of a shorter period than twenty years. Perkins’ Adm'r v. Hawkins’ Adm’r, 9 Gratt. 653; Wells v. Washington’s Adm’r, 6 Munf. 582; Tomlin's Adm'r r. Horn's Adm'r, Gilrn. 8; Hunt v. Bridgham etc., 2 Pick. 581; Jackson v. Pierce, 10 Johns. 414; Telghman y. 3*Yieher, 9 Watts. 442.” To the same effect, see the principal case cited in Booker v. Booker, 29 Gratt. 809.
      See further on this snbj ect, foot-note to Booker v. Booker, 29 Gratt. 605; monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
      The principal case was also cited in Hunter v. Snyder, H W. Va. 216.
    
    
      
      (a) 1 Rev. 508.
    
    
      
      (b) 2 Strange, 1242; 1 Wm. Black. 85; 2 T. It. 891.
    
    
      
      (c) See Rucker V. Hanna. 3 T. R. 124; 'Maddocks v. Holmes, 1 Bos. & P. 228. It is stated as a settled point. 1 Gbit. P). 505.
    
    
      
      (d) 1 Wash. 28.
    
    
      
      (e) In this court spring of 1805. This case which is referred to, was one in which the appellant brought case, at July rules 1799. the office judgment was entered and a writ of inquiry awarded. When called for trial in October 1800, the defendant moved to set aside the writ of inquiry, and plead the statute of limitations, to which the plaintiff objected; the court below overruled the objection, and allowed the plea. The court of Appeals 1805 reversed the judgment. Because no sufficient reason appeared to excuse the delay in pleading: the statute, and because the plea relied on 5 years before the plea as a bar, instead of 5 years before suit brought. This case is considered as being overruled by that of Tomlin’s administrator v. How’s administrator, it was decided by the court of Appeals April 17th 1805 before Lyons, Carrington, Roane, & Tucker, Judges. — Edition 1821.
    
    
      
      (f) 1 Rev. 492.
    
    
      
      (g) Chisholm v. Anthony, 1 H. & M. 27.
    
    
      
      (h) Jude v. Syme, 3 Call 352.
    
    
      
      (i) 1 Wash. 28.
    
   ROANE), Judge.

The court is oí opinion, that the plea of the act oí limitations is an issuable plea and such an one as ought to be received in setting aside an Office judgment. It is issuable, because the plaintiff may immediately take issue upon it, although under some circumstances he may omit to do it and reply some of the exceptions of the statute.

The court is also of opinion, that it is often and, most probably, is in this case, a very honest and conscientious plea: it may often be tfie only means of sheltering the defendant from paying an unjust debt.

In the case before us however, the office judgment was not set aside on the terms of pleading this plea: it was set aside on the plea of non assumpsit, and the defendant in offering to add this plea stands on the common ground of applying to add another plea deemed necessary to the defence of his cause. This liberty will not be denied unless the application be unreasonably delayed, and has a tendency to delay the plaintiff in his trial: it will not even then be denied, if it be essential to the justice of the case, and a good reason be shewn for not having pleaded it sooner. That this plea is or may be essential to the justice of the case before us, so far as can be discerned from the facts shewn on the first trial taken in relation to the case made by the declaration, cannot be doubted.

The defendant had also a good reason for not offering it sooner. He had a right to suppose that the end of the plea would be attained by the legal presumption arising from the staleness of the claim. The Jury however *found against that presumption on the first trial, and that without any evidence to shew an acknowledgment of the debt within twenty years. On the second trial they also found against the defendant, either without such last mentioned evidence, or in consequence of such evidence being produced.

In the first view the Jury may have misunderstood the law, on this point relative to simple contract debts, and thus have injured the defendant without any default in him. And if evidence of an acknowledgment of the debt was produced on the last trial, still it may be, that the plaintiff is not entitled to recover. The presumption may have been repelled by such evidence within the twenty years, but beyond the five years embraced by the act of limitations. In this last case nothing but the plea of the act could avail the cause of the defendant. Although a reliance on the presumption therefore would in most cases be sufficient for the defendant, and excuse him for not pleading the bar of the statute, it may not have that effect in all cases. In the case before us, that jilea is or may be essential to the defendant’s cause, and the court in its discretion ought to have allowed it.

As to the lapse of time which had taken place in this case, a part thereof is accounted for. by the order of reference to arbitrators, and another part by the death of the first administrator, and the probable delay in introducing the appellant as his successor.

And as to the verdict which was first found in this case, the case of Richardson v. Johnson, () shews, that that circumstance does not prevent the admission of a plea called for by the justice of the case.

The plea ought therefore to have been admitted by the court, especially in favor of an administrator who had been recently brought into the cause, and who may not when he first pleaded, have been sufficiently acquainted with the affairs of his intestate.

*Both Judgments are to be therefore reversed and the cause to be remanded in order to admit the plea aforesaid and for farther proceedings. 
      
      Brooke absent.
     
      
      (k) 2 Call, 527.
     