
    White v. Turner’s Adm’r.
    January Term, 1846,
    Richmond.
    (Absent Cabell, P.)
    i. Chancery Practice — Answer—Amendment—Statute of Limitations. — A defendant in equity allowed to amend his answer for the purpose of setting up the statute of limitations in bar of the plaintiff’s claim.
    a. Same — Bond — Set-Off — Simple Contract Claims— Case at Bar. — A bill is filed to have an account taken. The items of-the account are simple contract claims, except one, of a bond executed by the defendant to the plaintiff, and of which the defendant had taken possession without the consent of the plaintiff. The defendant, in his answer, sets up simple contract claims against the «plaintiff, of the same date with the plaintiff’s; and also pleads the statute of limitations in bar of the plaintiff’s claims. The bar of the statute being allowed as to the simple contract claims of the plaintiff, the defendant is not entitled to set off his simple contract claims against his bond.
    3. Same — Case at Bar. — In such a case, the Court should give the plaintiff a decree for the amount of the bond with interest.
    In 1813, Thomas Turner employed William White as a miller; and a written contract was entered into between them, by which it was agreed, that White should have one third of the profits of the mill, and should bear one third of the expenses. .White continued in the employment of Turner under this contract, until 1815; and they then attempted to make a final settlement of their accounts. At that time, besides other claims upon Turner, White held his bond which then amounted, principal and interest, to 95 dollars 17 cents. The parties not being able to agree, Turner made a statement of the claims which White held upon him, amounting to 679 dollars 2 cents, which he signed and gave to White, after endorsing upon it, that there were offsets to which he was entitled, to be credited upon that sum; and he took possession of the bond, and other evidences of debt which White held upon him, without White’s consent. White then brought an action at law against Turner, in the Superior Court for the county of Fauquier, for the amount which Turner had stated to be due to White.
    After White had brought his action at law against Turner, Turner instituted a suit in equity against White; and in his bill he charged that White had not accounted for all the profits which had come into his hands; and, also, had not accounted for all the wheat which Turner had delivered at the mill, from his own farm; and he asked for a settlement of the accounts between them.
    White answered the bill, denying the charges of delinquency on his part; and expressing himself not only willing but anxious for a settlement of their accounts.
    ^Whilst the suits were pending, by agreement of the parties, an order referring the accounts to arbitrators, was made in both of them; but the arbitrators never acted; and the order was, by consent, set aside. This last order was entered in the suit in Fredericksburg, in May 1826; and in September 1827, the accounts were referred to a commissioner; but before the account was taken, Turner, in April 1828, dismissed the suit. The order of reference was set aside in the action in Fauquier in November 1827; and the cause coming on for trial in September 1831, and it appearing that White’s demand was founded in part upon transactions growing out of a partnership, he was compelled to suffer a nonsuit.
    In November 1833, White instituted this suit in equity against Turner, in the Superior Court of Fauquier, setting out the facts as herein before stated, and asking for an account, and for general relief. Turner filed his answer, relying upon the facts stated in his bill, that White had not properly accounted for all the profits of the mill, and the wheat which Turner had delivered thereat, from his own farm. Subsequently, he asked leave to amend his answer for the purpose of pleading the statute of limitations in bar of the plaintiff’s claimpand whilst this motion was pending, the Judge of the Fauquier Superior Court; conceiving that it was not proper for him to sit in the cause, transferred it to the Superior Court for Spottsylvania. After the cause had been removed, the motion to amend the answer came on to be heard, in the absence of White’s counsel, when the Court allowed the amended answer, setting up the statute of limitations as a bar to the claim, to be filed; and the clerk, thereupon, entered a general replication to the answer.
    In May' 1837, the cause came on to be heard, when the Court held that the statute of limitations was a bar to the account prayed, except as to the bond for 95 dollars 17 cents, of which Turner had taken possession ; and except so far as might be necessary, to shew that *Turner had offsets against that bond, or had discharged it. And the Court directed a commissioner to enquire and report whether there was any thing due upon the bond; and whether Turner had any offsets against it.
    The admission of the amended answer, and the decree of the Court having been made in the absence of White and his counsel, he applied to the Court for a rehearing of the cause upon both orders; but the application was denied. Soon after this, Turner died, and the suit was revived against Eliza C. Turner, as his executrix; and then White obtained an appeal to this Court.
    Morson, for the appellant, and Moncure, for the appellee,
    submitted the case.
    
      
      Answer — Amendment.—See monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571; monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the act of limitations relied on by the testator of the appellee in his amended answer, is a bar to the account prayed by the bill, except as to the bond of the said testator to the appellant of 95 dollars 17 cents in the proceedings mentioned. The Court is further of opinion, that as it is not pretended by the testator of the appellee the said bond has been discharged or paid, except so far as the same might be shewn to be extinguished by the allowance of offsets constituting distinct or unconnected claims against the appellant, and it furthermore appearing that such offsets were simple contract claims of the testator of the appellee, co-temporaneous with the simple contract claims of the appellant, it would be improper to go into an account of such offsets on the part of the appellee, so as to extinguish the bond, without at the same time permitting the appellant to prove his counter offsets against such offsets attempted to be adduced bv the appellee; and thus the parties would be driven into an account of stale transactions, which it was the object of the testator of the appellee, by the de-fence of the statute of limitations *relied on in his amended answer, to ^avoid. The Court is of opinion, that as by that defence he has been protected from any charge growing out of the accounts barred by the statute, and as the accounts between the parties were cotempo-raneous, and grew out of the same transactions and dealings, no account of said transactions so barred by the statute, should have been directed for any purpose; and that upon the pleadings and proofs in the cause, as it appeared the bond aforesaid was improperly taken by the testator of the appellee, and the possession thereof still withheld from the appellant, the Court, instead of directing an account of offsets, should at once have rendered a decree in favour of the appellant, for the amount thereof, with interest thereon from the 10th July 1815; that being about the end of the second year for which the appellant held the mills, about which period the attempt was made to settle the accounts, and said bond was taken into his possession by the testator of the appellee.

The decree is therefore reversed with costs to the appellant; and this Court proceeding to make such decree as the Court below ought to have made, it is adjudged, ordered and decreed, that the appellant recover of the appellee the sum of 95 dollars 17 cents, with interest thereon from the 10th day of July 1815, until paid, and his costs, &c.  