
    Beattie v. Tabb’s Administrators.
    Tuesday, April 30th, 1811.
    1. Bills of Exception — Pacts Imperfectly Stated — Effect. —Judgment reversed, because the bill of exceptions stated the facts imperfectly.
    See, to the same effect, Barrett & Co. v. Taze-well, 1 Call, 115.
    2, British Subjects — Statute of Limitations — Operation. — The circumstance that a plaintiff is a British subject, and was entitled to his claim before the year 1776, is not, in itself, sufficient to protect him against the operation of the act of limitations.
    This was an action of debt, instituted December 28th, 1803, in the Petersburg district court, upon a promissory note executed by John Tabb to Robert Armistead, April 12th, 1775, and assigned to William Beattie.
    The defendants pleaded “nil debet, ” and, at the trial, gave in evidence to the jury the statute of limitations. Whereupon, the plaintiff proved that he was a British subject, and held, and was entitled, by assignment, to the note in question, before the year 1776 ; and moved the court to instruct the jury that he was protected from the operation of the said statute, under the second section of the treaty,  which is in these words: “Whereas it is agreed by the fourth article of the definitive treaty of peace, concluded at Paris on the third day of September, one thousand seven hundred and eighty-three, between his Britannic Majesty and the United States, that creditors *on either side should meet with no lawful impediment to the recovery of the full value, in sterling' money, of all bona fide debts theretofore contracted; it is hereby declared, that the said fourth article, so far as respects its future operation, is hereby recognised, confirmed, and declared to be binding and obligatory on his Britannic Majesty and the said United States ; and the same shall be accordingly observed with punctuality and good faith, and so as that the said creditors shall hereafter meet with no lawful impediment to the recovery of the full value, in sterling" money, of their bona fide debts.” But the court, being of a different opinion, refused to give such instruction. To which opinion of the court the plaintiff filed a bill of exceptions, setting forth the above circumstances only.
    Verdict and judgment for the defendants, and appeal.
    George K. Taylor, for the appellant,
    quoted 5 Burr. 2630, Quantock v. England, as showing that the act of limitations is not an absolute bar, but only a legal impediment to the recovery of a debt. He then relied on the cases of Georgia v. Brailsford and others, 3 Dallas, 1, Ware v. Hylton, ib. 399, and Page v. Pendleton, Wythe’s Rep. 127, as establishing the position that the restoration of peace, as well as the very terms of the treaty of 1783, revived the creditors’ right of action to recover British debts. In Hopkirk v. Bell, 3 Cranch, 454, and 4 Cranch, 164, it was decided that the act of limitations was no bar to those debts. It is now understood, in the federal courts, as settled, that the act runs only from the time of the plaintiff’s, coming into this country since the date of the convention of 1802, and this court, on questions relating to the construction of treaties, abides- by the opinions of the supreme court of the United States ; in like manner as that court is governed by the decisions of the state courts, on the subject of state laws.
    *Hay, for the appellees,
    was not disposed to controvert the authority of the case of Hopkirk v. Bell; thoug'h it was an ex parte decision. The only question is, whether this case is so stated as to come within the scope of that decision ; the ground of which was, that Hopkirk, the surviving partner of Spiers, Bowman & Co. had always been resident in the kingdom of Great Britain ; and though it was afterwards certified (4 Cranch, 164,) that Andrew Johnston, one of the partners, came into this country in 1784, and died here in 1785, the court said, this additional circumstance was not sufficient to vary the former decision. If the company had had a factor resident here, the' decision would have been different.
    But in this case, it is only stated that the plaintiff is a “British subject.” Where he resided does not appear. It is true that it does not appear that he was always resident in this country ; but it was incumbent on him to make out a case to entitle him to recover in opposition to the plea» of the act of limitations.
    George K. Taylor, in reply.
    Admit that the plaintiff always resided here, (though such was not the fact,) yet Hopkirk v. Bell is clear authority in his favour ; and if it were not, the convention of 1802, in itself, is sufficient. The British authorities are conclusive that, if the act of limitations runs against one of the partners of a firm, it runs against all. The true meaning of the decision is, that though the act once did run, it was set aside by the convention : by which it was intended to revive claims already barred by the act, which is merely a lawful impediment, as decided in S Burr. 2630.
    
      
      BiUs of Exceptions — Facts Imperfectly Stated — Effect. — Where a bill of exceptions states the facts so imperfectly that the court cannot discover how .the case ought to be decided, the judgment should be reversed and the cause remanded for a new trial. To sustain this proposition, the principal case is cited with approval in Brooke v. Young, 3 Rand. 117; Lynch v. Thomas, 3 Leigh 689, 690; McDowell v. Crawford, 11 Gratt. 398; Strader v. Goff, 6 W. Va. 264; foot-note to Barrett v. Tazewell, 1 Call 215; footnote to Raines v. Philips, 1 Leigh 483; foot-note to Thompson v. Cumming, 2 Leigh 321. But see contra, foot-note to Thompson v. Cumming, 2 Leigh 321; footnote to Bowyer v. Chesnut, 4 Leigh 1; foot-note to Harman v. Lynchburg, 33 Gratt. 37; monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887, where it is shown that the later decisions sustain the rule that a bill of exceptions must clearly and distinctly point out the error complained of, otherwise the exception is unavailing; in other words, where the bill of exceptions is so uncertain that the appellate court cannot discover whether or not there has been error, the judgment of the lower court ought to be affirmed. Otherwise a premium would be put upon carelessness, and the exceptor would be encouraged to draw his exceptions in as confused a way as possible.
    
    
      
       Statu of Limitations — Pleading.—In Draper v. Glassop, Salk. 278, Lord Holt expressed the opinion that the statute of limitations was proper evidence under a plea of nil debit; that the action of debt formed an exception to the rule that the statute of limitations, to be relied on, must be specially pleaded; and cannot be given in evidence under the general issue. As strongly countenancing this opinion of Lord Holt, the principal case is cited in Butcher v. Hixton, 4 Leigh 528.
      See further, on this subject, monographic note on “Limitation of Actions* appended to Herrington v. Harkins, 1 Rob. 591.
    
   Thursday, May 9th. The president delivered the opinion of the court, that the statement of facts in the bill of exceptions was too imperfect to enable this court to form a correct decision.

Judgment reversed, and new trial directed.  